748 P.2d 1091 (Utah 1988)

[Defendant was tried for burglary before a judge who had previously prosecuted him. He moved to disqualify the judge, but the motion was denied. The Supreme Court held that the trial judge erred in failing to recuse himself, but the error was harmless.]

Defendants filed a pretrial motion to disqualify Judge Banks from presiding at their trial. In a supporting affidavit, they alleged bias and prejudice stemming from his serving as district attorney before coming on the bench. In that capacity, some twenty years prior, he had signed the criminal information in four earlier cases involving defendant Lynn Belt, and in one of the cases, he appeared in court to accept a guilty plea. The motion was referred to Judge Conder, who held the affidavit to be legally insufficient. Defendants filed an amended motion which was heard by Judge Fishler, who likewise denied it.

We first examine whether the trial judge was required to recuse himself from the case. Utah Code Ann. 77-35-29(c)-(d) (1982. Supp. 1987) provide in part:

(Emphasis added.)

Judge Banks, in compliance with this rule, certified the affidavit to Judge Conder, who reviewed it and found it legally insufficient. When defendants renewed their motion, it was certified to Judge Fishler, who ruled that the affidavit as amended was still legally insufficient. Based on these findings, Judge Banks proceeded to hear the case. We find no reversible error. Judge Banks determined that he had no actual bias against defendant Belt by reason of his involvement in Belt's prosecution some twenty years prior. He then followed the statutorily mandated procedure to determine whether sufficient legal grounds existed to require his disqualification. While it has been suggested that a trial judge disqualify himself whenever an affidavit of bias and prejudice is filed against him in good faith, this practice is not mandatory. See State v. Byington, 114 Utah 388, 200 P.2d 723 (1948).

However, a judge should recuse himself when his 'impartiality' might reasonably be questioned. Utah Code of Judicial Conduct 3(c)(1)(b) (1981). This standard set forth by the Code of Judicial Conduct should be given careful consideration by the trial judge. It may require recusal in instances where no actual bias is shown. Failure to observe it may subject the judge to disciplinary measures. However, that does not necessarily mean that the defendant is entitled to a new trial. The parameters of defendants' constitutional rights to a fair trial are defined by section 77-35-29(c)-(d) and relevant case law, not the Code of Judicial Conduct. See Harvell v. State, 742 P.2d 1138, 1140 (Okla. Crim. App. 1987); State v. Mixon, 30 Wash. App. 63, 69, 631 P.2d 1033, 1038 (1981).

Anderson v. Industrial Commission of Utah,696 P.2d 1219 (Utah 1985), cited by defendants, is distinguishable. In that case, the attorney for the Second Injury Fund, Mr. Allen, argued for the Fund at the Anderson hearing. When the judge who heard the case retired, he did not enter a supplemental order as required. Allen, who by then had become an administrative law judge, signed the order dismissing plaintiff s objections in the same case in which he had served as counsel for the Fund. Utah Code Ann. 78- 7-1 (1987) provides that a judge shall not act on any matter in which he was counsel for either party in the proceeding. It was improper for Allen to appear as both counsel and judge in the same case. The instant case involves separate cases with over twenty years having elapsed between this trial and the prior appearance of Judge Banks as district attorney.

Although there are cases to the contrary, the majority view is that a judge who has had previous contact with a defendant on a totally unrelated matter is not per se disqualified. Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir. 1979); Jordon v. State, 274 Ark. 572. 626 S.W.2d 947 (1982); Commonwealth v. Darush. 279 Pa. Super. Ct. 140, 146, 420 A.2d 1071. 1074 (1980). This view is consistent with section 77-35-29, which calls for review of the allegation of bias and prejudice by another judge, and canon 3(c)(1)(b) of the Utah Code of Judicial Conduct, which states: (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. including but not limited to instances where: . . . (b) he served as lawyer in the matter in controversy . . . (Emphasis added.)

In holding that the failure to recuse is not reversible error in this case, we do not withdraw from the stand this Court has taken on previous occasions that the integrity of the judicial system should be protected against any taint of suspicion. See Haslam v. Morrison, 113 Utah 14, 190 P.2d 520 (1-948). But, while we recommend the practice that a judge recuse himself where there is a colorable claim of bias or prejudice, absent a showing of actual bias or an abuse of discretion, failure to do so does not constitute reversible error as long as the requirements of section 77-35-29 are met.